RISQ Review PROPERTY & CASUALTY INSURANCE - RISQ Consulting
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June 2021 | Issue 15
RISQ Review
PROPERTY & CASUALTY INSURANCE
Also in this Issue:
The Importance of Two-factor Authentication
“As cyber attacks become more and more common, protecting your data is
Page 2: Employee Benefits,
increasingly difficult. In fact, a study from Juniper Research found that by 2023,
HR, & Compliance cyber criminals are expected to steal an estimated 33 billion records.
In light of the growing number of cyber attacks, many companies are turning to two
Page 7: State & International -factor authentication (also commonly called 2FA or multifactor authentication) to
Compliance enhance their cyber security.”
Full Article
Zywave
PEOs and Workers' Compensation
“Companies may need to work with professional employer organizations
(PEOs) to obtain contract workers for several reasons—whether it’s to
account for their seasonal production periods, fulfill large contracts or
secure contract-to-hire positions. Yet, before using a PEO to acquire
employees, it is important for employers to understand what the
responsibilities are for each party involved and how they can negotiate the
contracts for service.
As clients, employers must understand that—depending on what the
contract states—they may be liable for any workers’ compensation claims
that arise from contract workers if such employees become ill or
injured while working at their facilities.” Full Article
Zywave
Amazon to Overhaul Warehouse Worker Metric Cited in Injuries
“Amazon.com Inc. is overhauling a controversial worker-productivity yardstick that has drawn the ire of warehouse employees
who say it imposes an unsafe burden on them.
The world’s largest online retailer uses sophisticated algorithms to monitor productivity at its facilities, and employees must
explain why they’ve been away from their workstations — what Amazon calls “time off task.” If they reach a certain threshold
they’ll be issued warnings and even terminated.” Full Article
Insurance Journal
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RISQ Review
EMPLOYEE BENEFITS, HUMAN RESOURCES, & COMPLIANCE
LGBTQ+ Protections Under the ACA Are In Effect Again!
“Many questions remain unresolved about the scope of guidance— but one thing is certain: HHS will have more to say on this issue,
and so, too, will the courts. Employers should know whether their plans contain provisions that could be discriminatory and could
therefore put the employer at risk for enforcement action or discrimination claims.” Full Article
Jackson Lewis P.C.
Senate Finance Committee Considers
Telehealth Expansion; Payment Approaches
Are Key Talking Point
“During a congressional hearing, a healthcare policy expert
said a fee-for-service is not a viable way to fund a
Medicare telehealth expansion. Implementation of capitated
payment models for telehealth is essential both to manage
overall spending and to promote innovation, experts said.
Pending legislation would permanently incorporate some of
the telehealth waivers that were established in response to
the public health emergency.” Full Article
Healthcare Financial Management Associations [HFMA] PBMs Keep ERISA Preemption Fight Alive
“Five months after the Supreme Court of the United States
handed down a loss to the pharmacy benefit manager (PBM)
lobbying group Pharmaceutical Care Management
Association (PCMA), filed a brief in the Eighth Circuit arguing
that the ruling does not narrow the scope of ERISA
preemption for the PBM regulation. PCMA’s filing signified
the opening round of the next fight as to whether the
Supreme Court’s ruling will be narrowly construed to apply
to rate-setting regulation or applied more expansively to
preempt PBM regulation of other conduct.” Full Article
Duane Morris LLP
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EMPLOYEE BENEFITS, HUMAN RESOURCES, & COMPLIANCE
Second-Guessing The Advice Columns: After-Hours Texts From The Boss
“Miss Manners should stick to writing about ice cream forks.” Full Article
Constangy Brooks, Smith & Prophete LLP
Compliance Concerns for Employers with
New, Permanent Out-of-State Workforces
“Many businesses saw their workforces turn remote during
the pandemic, with some permitting employees to work
from anywhere.” Full Article
Michael Best & Friedrich LLP
Reassignment Is The Reasonable
Accommodation Of Last Resort
“So my partners and I have repeatedly written that, under
the Americans with Disabilities Act (ADA), employers – not
employees – get to choose among available
accommodations to enable an employee with a disability to
perform their essential job functions or enjoy equal
privileges and benefits of employment.” Full Article
Shawe Rosenthal LLP
COVID-19: U.S. Employer Checklist Reopening Strategies And Return-to-Work Policies After
COVID-19 Pandemic
“The following is a list of suggested practices for businesses to consider during the reopening process as they return employees to
in-person work after an extended period of working remotely.” Full Article
K&L Gates LLP
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EMPLOYEE BENEFITS, HUMAN RESOURCES, & COMPLIANCE
HHS Announces Prohibition on Sex Discrimination Includes Discrimination on the Basis of Sexual
Orientation or Gender Identity
“The Office for Civil Rights will interpret and enforce Section 1557 and Title IX's prohibitions on discrimination based on sex to
include: [1] discrimination on the basis of sexual orientation; and [2] discrimination on the basis of gender identity. Section 1557
prohibits discrimination on the basis of race, color, national origin, sex, age, or disability in covered health programs or
activities." Full Article
U.S. Department of Health and Human Services [HHS]
The Pocket Guide to COBRA Subsidy Notices
“Summary of COBRA notices required by ARPA, in chart
form. For each such notice, the chart includes [1] Who gets
this notice? and [2] Deadline to furnish this notice.” Full
Article
Proskauer
2022 Benefit and Payment Parameters Part
Two Includes Revised Cost-Sharing Limits,
Rules for COBRA-Related Exchange Special
Enrollments
“The maximum annual limit on cost-sharing for 2022 will
increase to $8,700 for self-only coverage and $17,400 for
other than self-only coverage. Note that this is $400 less
than the proposed limits of $9,100 for self-only coverage
and $18,200 for other than self-only coverage. The
regulations finalize a variety of rules for special enrollment
periods, including some that impact COBRA coverage.” Full
Article
Thomson Reuters / EBIA
Mental Health Parity Compliance Returns to Forefront for Group Health Plan Sponsors
“Effective as of February 10, 2021, employers must be ready to prove their compliance with MHPAEA standards, particularly for
'non-quantitative treatment limitations'. These standards used for MH/SUD benefits must be comparable to and applied no more
stringently than standards used for medical and surgical benefits.” Full Article
Jackson Lewis P.C.
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EMPLOYEE BENEFITS, HUMAN RESOURCES, & COMPLIANCE
Labor Department Further Delays FLSA Tip Regulations Final Rule Until the End of 2021
t
“On April 28, 2021, the U.S. Department of Labor (DOL) announced that it will further delay, until December 31, 2021, the
effective date of portions of the previous administration’s Tip Regulations Final Rule under the Fair Labor Standards Act (FLSA).
That Final Rule, issued in late December 2020, originally was scheduled to go into effect on March 30, 2021, but the DOL
previously extended that deadline to April 30, 2021.” Full Article
Jackson Lewis
OSHA Releases Guidance for Employers
Considering Vaccine Requirements
“On April 20, 2021, the Occupational Safety and Health
Administration (OSHA) released three new FAQs for
employers who recommend or require employees to receive
COVID-19 vaccines. OSHA is responsible for enforcing
workplace safety standards across the US. McDermott
previously reported that employers can require employees
to be vaccinated as a condition of employment, though
employers should consider several factors before making the
decision to require employee vaccinations.” Full Article
Can Diversity Initiatives, Religious Freedom
McDermott Will & Emery
and LGBTQ+ Rights Co-Exist at Work?
Yes, They Can
“In the wake of the U.S. Supreme Court’s decision in
Bostock v. Clayton County recognizing that LGBTQ+
employees are protected by Title VII of the Civil Rights Act
of 1964, employers are increasingly being placed in the
difficult position of weighing often diametrically opposed
rights. Religious freedom or LGBTQ+ rights; how do you
choose? It’s simple; you don’t.” Full Article
Ford Harrison
Houston - We Have a Problem: Lessons to Learn from Elon Musk on the National Labor Relations
Act and Social Media
“The National Labor Relations Act (“NLRA”) may not be rocket science, but even Tesla CEO and Space X founder Elon Musk can
use some guidance from mission control to avoid turbulence from its application. As part of a spate of violations of the NLRA by
Tesla, on Thursday March 25, 2021, the National Labor Relations Board (NLRB) upheld a 2019 ruling that found that a 2018
tweet made by Musk violated the NLRA by threatening to revoke benefits from Tesla employees if they joined a union.” Full
Article
Breazeale Sachse & Wilson
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EMPLOYEE BENEFITS, HUMAN RESOURCES, & COMPLIANCE
IRS Issues Guidance on COBRA Subsidies Just in Time
“A determination of whether a termination of employment is 'involuntary' is based on the facts and circumstances. The extended
election period applies only to a group health plan subject to Federal COBRA, and does not apply to a group health plan subject
to State mini-COBRA unless the State mini-COBRA statute itself provides for a similar extended election period.” Full Article
Ice Miller LLP
DOL Actively Enforcing Newly Required
Mental Health Comparative Analysis
“For insured plans, this responsibility falls on the insurer.
However, for self-insured plans, the employer is solely
responsible and cannot expect third-party administrators to
prepare the analysis. Preparing an analysis that compares
the application of NQTLs to MH/SUD benefits and to
medical and surgical benefits is no simple matter. Agency
requests for the comparative analysis may be random or in
response to a complaint alleging a parity violation.” Full
Article
Bradley Game-Changer: The CDC Lifts COVID-19
Masking and Distancing Restrictions for Fully
Vaccinated Individuals
“On May 13, 2021, the Centers for Disease Control and
Prevention (CDC) announced that Americans who have been
fully vaccinated against COVID-19 no longer need to wear
a face covering or practice physically distancing in any
setting.” Full Article
Littler Mendelson P.C.
DOL Withdraws Independent Contractor Regulations, Meaning More Uncertainty for Employers
“On May 6, 2021, the U.S. Department of Labor formally withdrew final regulations promulgated earlier this year under the
prior administration which set forth, for the first time by way of an Administrative Procedure Act rulemaking, the analysis the
Department would use to determine whether a worker was an employee or independent contractor under the federal Fair Labor
Standards Act (FLSA).” Full Article
Littler Mendelson P.C.
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STATE & INTERNATIONAL COMPLIANCE
Good News for Alaska Employers Faced With Employee Overtime Claims
ALASKA
“In a departure from well-established Alaska precedent, the Alaska Court ruled that Alaska’s
Wage and Hour Act will be interpreted consistently with the federal FLSA with regard to the
employer’s burden to prove that the employee falls within the exemption in Buntin v.
Schlumberger Technology Corp., Slip Op. No. 7521 (April 23, 2021).” Full Article
Lane Powell
NEW YORK New York State Passes the HERO Act Imposing New Health and Safety Standards in the
Workplace
“Responding to calls for more stringent safety protocols revealed by the COVID-19 pandemic, on May
5, 2021 Governor Cuomo signed the New York State Health and Essential Rights (HERO) Act (the
“Act”), which establishes mandatory standards for COVID-19 as well as all airborne infectious
diseases.” Full Article
Cullen and Dykman LLP
NEW YORK New York Heroes Act Requires Workplace Safety Measures
“In an effort to prevent the occupational exposure to an airborne infectious disease, the New York
legislature has passed the aptly named New York Health and Essential Rights Act, or NY HERO Act,
which amends the New York Labor Law (NYLL) by adding two new sections.1 This bill has been
delivered to Governor Cuomo’s desk and he is expected to sign it into law.” Full Article
Littler Mendelson
ILLINOIS Illinois Amends Employee Sick Leave Act to Cover Personal Care for Family Members
“The Illinois Employee Sick Leave Act (ESLA) has been amended to require employers to allow
employees to take personal sick leave for absences due to ‘personal care of a covered family
member.” Full Article
Jackson Lewis P.C. Funai
Masuda Funai Employment Newsflash - Improper Use
ILLINOIS
of an Employee's Fingerprints, Eyes or Face UPDATED
“Earlier this year, we published the below summary of the Illinois Biometric Information Privacy Act
(“BIPA”). Because of increased litigation in this area over the last couple of months, we are publishing
the information again and urging companies to evaluate their use of employee fingerprints, hand
scans, retina scans or facial recognition technology anywhere in the workplace.” Full Article
Masuda Funai
Page 7 RISQConsulting.com June 2021
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STATE & INTERNATIONAL COMPLIANCE
US: New California Law Gives Rehiring Rights to
CALIFORNIA
Employees in Hospitality, Business Services Industries
“California Governor Gavin Newsom signed a bill on 16 April 2021, requiring hotel, event center,
airport hospitality and janitorial employers to give priority to rehire workers laid off during the
pandemic when jobs become available.” Full Article
DLA Piper LLP
Coming Soon: Revisions to Cal OSHA’s COVID-19
CALIFORNIA
Emergency Temporary Standards Anticipated by June 2021
“At the Cal OSHA Standard Board meeting on April 15th, several public commenters admonished the
Standard Board about the lack of guidance from Cal OSHA or in the ETS regarding vaccinated
individuals. The Standard Board disclosed that revisions to the ETS, including revisions about vaccinated
individuals are in progress. Though it would be difficult due to tight timelines, the Standard Board hoped
to have revisions passed by June, when California is tentatively set to fully reopen.” Full Article
Jackson LewisP
PENNSYLVANIA
Philadelphia City Council Passes Ordinance Banning Pre-Employment Testing for Marijuana
“As a result of a new ordinance passed by Philadelphia City Council, employers, labor organizations, and
employment agencies in Philadelphia may not require a prospective employee to submit to testing for the
presence of marijuana in the person’s system as a condition of employment. The new ordinance is a
reflection of the current shift in attitudes concerning marijuana and the movement towards legalization of
the drug.” Full Article
Lewis Brisbois
Philadelphia Strengthens Workplace
PENNSYLVANIA
Protections for Victims of Domestic Violence
“On May 11, 2021, Philadelphia, Pennsylvania enacted amendments that immediately strengthen
workplace protections for victims of domestic violence.” Full Article
Littler Mendelson P.C.
VIRGINIA US: New Overtime Law in Virginia
“On 31 March 2021, Governor Ralph Northam signed the Virginia Overtime Wage Act (VOWA) into
law.” Full Article
DLA Piper LLP
Page 8 RISQConsulting.com June 2021
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